By Jerald and Sandra Tanner

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On April 28, 1983, the Mormon scholar Andrew Ehat filed a lawsuit against us (Jerald and Sandra Tanner) in an attempt to stop publication of some extracts from the diaries of Joseph Smith’s private secretary, William Clayton. Because these diaries contain embarrassing material on the origin of polygamy and other matters, they have been suppressed in the vault of the First Presidency of the Mormon Church. Some time prior to 1981, Mr. Ehat gained access to the diaries and made the revealing extracts. Ehat tried very hard to keep the material from falling into the hands of critics of the Church, but a member of a bishopric in Provo duplicated the material and it was widely circulated by Mormon scholars at Brigham Young University. These extracts subsequently found their way into our hands and we printed them in the book Clayton’s Secret Writings Uncovered. We feel that the copyright laws do not support Ehat’s contention and believe that the suit is doomed to failure. In response to Mr. Ehat’s accusations, our lawyer subpoenaed the President of the Mormon Church and/or his representative to appear with the original Clayton diaries to give testimony on our behalf.

On July 22 attorneys for the Corporation of the President of the Church filed a motion which asked that our subpoena “be quashed and the discovery requested therein not be had on the grounds (1) that the requested discovery is not needed by the parties, nor relevant to the subject matter of this action, and not likely to produce admissible evidence, and (2) that the requested discovery is an annoyance and oppression, and an undue burden upon the Corporation of the President, . . .” In an accompanying Memorandum of Law the Church’s attorneys stated: “The Corporation of the President of the Church of Jesus Christ of Latter-day Saints, and President Spencer W. Kimball of the Church, have standing to object to the production of documents which are unnecessary to the parties and irrelevant to the subject matter herein and with respect to which production may be sought for ulterior motives.” On September 6 a hearing was held before Judge A. Sherman Christensen. The Church’s attorney, Wilford W. Kirton, vigorously opposed the subpoena. Mr. Kirton argued:

The church, Mormon Church, has now been subpoenaed through its principal officer, Spencer W. Kimball, to appear and produce the original documents referred to as diaries, or the diary of William Clayton, . . . I’m here representing a third party who is required by subpoena duces tecum, unless the court gives protective order which we seek, to produce documents from its archives which have not heretofore been published in order to satisfy what the defendant conceives to be an issue in this case . . .

Now, this is a matter of some serious moment as far as we are concerned; and we call the court’s attention to those authorities that have been cited to it in support of this motion, and particularly at this time to Mc Cormick on Evidence at section 77. I will very briefly read, “It is evidence that for many people, judges, lawyers and laymen the protection of confidential communications from enforced disclosure has been thought to represent rights of privacy and security too important to relinquish to the convenience of litigants” . . . suddenly we find ourselves being subpoenaed to come in to court and make public certain writings, which up to the present time remain unpublished, . . .

Now, the defendants in this case, as I conclude, have, since the motion has been filed to quash, published another document here. It goes without saying any cursory reading of this document or any of their other writings discloses without question of doubt that they are self-appointed critics of the church that I represent, seek to find from whatever sources they can matters that they think are important in their minds enough to make public a part of their general criticisim [sic] of the church. I am confident that which motivates them to require the public, or the publication or the bringing in to court of the materials that they seek to subpoena are for those purposes rather than to assist them in the defense of the cases being brought against them by the plaintiff. (“Hearing to Quash Subpoena Duces Tecum and Objections Before the Honorable A. Sherman Christensen, Tuesday, September 6, 1983,” certified copy, pages 4, 5, 7)

On page 20 of the same hearing, the Church’s attorney stated: “. . . I represent an organization that is very concerned about parties attempting to frame issues through which its own private materials may be discoverable. It has no desire to submit to the scrutiny of the parties.”

Judge’s Decision

Andrew Ehat’s lawyer, Gordon A. Madsen, who is the “authorized agent of Religious Studies Center” at the Mormon Church’s Brigham Young University, joined with the church’s attorney in urging that the diaries be suppressed:

. . . their principal reason for wanting to see the original journal of William Clayton is to further embarrass the Mormon Church.

There is no reference about the rights of the plaintiff in this lawsuit, just rather we want more. Having stolen the horse, or gotten possession of the horse, we want the bridle and the saddle so we can embarrass you. . . . I believe that the defendants are hoping in trying to get this discovery of this otherwise private journal of William Clayton, never before published, . . . They’re hopeful, I believe, in order to put pressure on the Mormon Church to produce Clayton’s journal, the church will put pressure on the plaintiff to withdraw the lawsuit to protect his rights in order not to have the Mormon Church embarrassed. (“Hearing . . .”, pages 8-9)

Judge Christensen took the matter “under advisement” and on September 16, ruled that the church would not have to produce the diaries. In order to get the ruling to suppress the diaries, Ehat’s lawyer had to back off from one of the charges made in the original complaint against us. This charge stemmed from some personal comments Ehat added to the Clayton extracts. Before we published the manuscript we noticed these comments. While we knew that Ehat could not copyright material from the diaries, we felt that he could possibly claim a copyright on his own comments. To solve this problem we blacked out Ehat’s own notes which appear in the text. We explained this matter in the Introduction to Clayton’s Secret Writings Uncovered. In the lawsuit, however, it was charged that our claim to have “blacked out” Ehat’s comments was “false” (page 5). Now, since it was sometimes difficult to tell when Ehat had added a comment, it could be possible that some of Ehat’s material filtered through. If it amounted to less than a few hundred words (which we feel is most likely), we could claim “fair use” and could easily win the suit. If, on the other hand, Ehat could show that a considerable amount of material written by him was not blacked out, there is a possibility that we could lose the suit. The only way we would ever be able to determine the truth about the matter would be by examining the original diaries. In order to keep the diaries suppressed, Mr. Ehat’s lawyer decided he would have to admit that the charge he had made against us was irrelevant to the outcome of the suit. Mr. Kirton (the church’s lawyer) also argued for this position:

The defendant . . . indicates to the court by answer and other documents that the materials which are the subject matter of the lawsuit were not any infringement of any copyright of the copyrights of the plaintiff, but simply were the reproduction of certain notes made by the defendant in connection with the preparation of his publication; and that exercising due care, these instruments came into the hands of the defendant, exercising due care that not be a violation of any of his original works. Care was taken though, as alleged by the defendant, to blot out in its reproduction of his notes whatever they could conceive to be his original work. . . .

Now, in a conversation before this hearing with counsel for the plaintiff, I believe he is prepared to say that the only things that are in the paragraph notes of Mr. Ehat, the plaintiff, on which there could be any question are a few dates, a couple of little marginal notes or this sort of thing which would not be material to his theory of the case that he is urging the court to consider . . . it could be only on a technical date or two that appear in the margins that perhaps have not been blacked out. That can’t be material to whether or not there has been a violation of the rights of the plaintiff which he has brought to this court with respect to the total publication. I respectfully urge this court to give the protective order that we have respectfully requested and protect the information that cannot serve any useful purpose in the determination of the issues as they have been framed in this lawsuit. (“Hearing . . .”, pages 3, 4, 6-8)

The following exchange occurred between Judge Christensen and Ehat’s lawyer:

THE COURT: Suppose the defendant is correct though that with regard to quotations from the journal, they are not subject to your client’s proprietary interest? Suppose that were held?

MR. MADSEN: Then it wouldn’t matter whether some parts are blacked out or not blacked out, matters why he would be entitled to publish.

THE COURT: He would be entitled to publish not only the extraction but the commentary of your client concerning them?

MR. MADSEN: They make an argument in their memorandum if he isn’t successful in all blacking out what notes are left are exempt under fair common notion of copyright. They also —

THE COURT: You’re not responding to my question.

MR. MADSEN: I’m sorry. Maybe I misunderstood your question.

THE COURT: Do you concede that if the law is that the quotations of your quotation from the journal doesn’t violate any proprietary interest of your client that your case fails?

MR. MADSEN: I think it does. I think if they can say this is not copyright material and they therefore are at liberty to print it. (“Hearing . . .”, pages 10-11)

In his ruling on the motion to quash the subpoena, Judge Christensen wrote:

Plaintiff’s complaint is not a model of clarity or certainty and talks in general of copyrighted works completed or to be completed, and of the notes from the Clayton Journals upon which these publications have been or will be based that have fallen into the hands of the defendants and which have either been republished or he fears will be republished by them. . . .

It is true that in argument plaintiff’s counsel claimed some work product interest in his research in general or in his arrangement of his research material. The complaint, however, negates any such separate actionable claim. Indeed, in response to the question of the court, plaintiff’s counsel conceded that if quotations from the Clayton Journal were not protectible under plaintiff’s claimed copyrights or proprietary interest, his “case would fail,” despite the fact that there may have been some of plaintiff’s own comments commingled with the quotations. The defendants on their part have disaffirmed by their own writings any claim of right or intent to publish protected work products of plaintiff as distinguished from the extracts he has made from the Clayton Journals. (“Ruling on Motion to Quash Subpoena Duces Tecum,” pages 2 and 4)

While the Church and Ehat’s lawyer were able to keep us from seeing the original diaries at the present time, we will be seeking them again if Mr. Ehat continues to press the suit. We maintain that Ehat cannot copyright the writings of William Clayton. The following is plainly stated in Section 103(b) of Title 17, United States Code: “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” Since Ehat’s notes are composed of extracts from “preexisting” material (the diaries of William Clayton), he cannot claim copyright protection. If Mr. Ehat had made a unique compilation or translation of Clayton’s words, he could have sought protection under the copyright law. The notes which we have published do not meet either of these requirements.

Mr. Ehat’s lawyer argues that “the arrangement of the actual original Clayton material are proprietary rights of my client . . .” We feel, however, that the extracts are not organized in any way for publication and therefore do not qualify as copyrightable material. In any case, we do not see how that could possibly win the suit if the Church does not produce the original diaries for inspection by the court. We do not believe that any judge would convict us of a copyright violation without allowing us to compare the original diaries with Ehat’s version, and we would not accept such a decision without making an appeal to a higher court. The claim of a unique arrangement could not possibly be proven without the diaries themselves.

At any rate, one Mormon scholar said that Ehat’s notes are actually a compilation of material from three individuals—Andrew F. Ehat, Lyndon W. Cook and James B. Allen, who formerly served as Assistant Church Historian. When Ehat and Cook published their book, The Words of Joseph Smith, in 1980, they credited James B. Allen with providing material they used from the Clayton diary. In a footnote on page 263 they stated: “23. William Clayton 1842-1846 Diaries. Citations from these diaries are used by permission and were provided by Dr. James B. Allen, . . .” It seems very likely that Ehat is claiming a copyright on some material he derived from other scholars. In order to get to the bottom of this matter, we are going to subpoena Ehat, Cook, Allen and possibly other Mormon scholars to testify concerning the matter. We are also thinking of subpoenaing a Mormon Apostle who talked to Ehat about the extracts. (If some of our readers have information about the Ehat affair, we would certainly appreciate it if they would contact us.)

For Our Good

Fighting this lawsuit will cost thousands of dollars and a great deal of time, but we feel that it will all work out for our good. The publicity surrounding it has already helped our work a great deal. Some of those who oppose our work have been hoping that the suit will drive us into bankruptcy, but we feel that it will have just the opposite effect. As Joseph told his brothers who had sold him into Egypt, “. . . ye thought evil against me; but God meant it unto good, to bring to pass, as it is this day, to save much people alive” (Genesis 50:20). In Romans 8:28 we read: “And we know that all things work together for good to them that love God, to them who are the called according to his purpose.”

Although Andrew F. Ehat is attempting to destroy our work with a suit which asks damages of up to “the sum of $50,000,” and the costs of the action to the plaintiff, we do not hold any bad feelings toward him. He apparently feels that he is doing the right thing and that he is working to save the Mormon Church. When Ehat originally discovered that the extracts were circulating at Brigham Young University, he exclaimed: “If this gets out it could destroy the Church” (Seventh East Press, January 18, 1982, page 11). In his misguided zeal to protect the Church, Mr. Ehat is actually causing it more embarrassment by bringing a great deal of attention to the matter. If we did not know otherwise, we would almost think that Mr. Ehat is working for our side.

Must Suppress

At the beginning of this Messenger we indicated that the Church is fighting to suppress the Clayton diaries because they “contain embarrassing material on the origin of polygamy and other matters.” One of the most important reasons for suppressing the diaries relates to the fact that they discredit Joseph Smith’s History of the Church—one of the most important publications issued by the Mormon Church. Below is some very revealing information which is taken from the Preface of our publication Clayton’s Secret Writings Uncovered.

In Mormonism—Shadow or Reality? pages 126-142D, we show that the History of the Church, which was supposed to have been written by Joseph Smith himself, is filled with serious problems and that over 60% of it was actually compiled after Smith’s death. The Mormon leaders plagiarized from diaries, newspapers and oral accounts of other people to complete the history. To make it appear that the history was written by Joseph Smith, these accounts were changed to the first person. The extracts from Clayton’s diaries throw important light on this subject. Even a superficial examination reveals that Clayton’s writings were the source for entries attributed to Joseph Smith in the History of the Church. For instance, under the date of May 1, 1843, Clayton recorded this statement concerning the Kinderhook plates in his diary: “Prest J. has translated a portion and says they contain the history of the person with whom they were found & he was a descendant of Ham . . .” (page 18). In the History of the Church this has been falsified to make it appear that Joseph Smith was the author: “I have translated a portion of them, and find they contain the history of the person with whom they were found. He was a descendant of Ham, . . .” (vol. 5, page 372).

On May 16, 1843, Clayton wrote: “Before we retired the Prest. gave bro Johnson & wife some instructions on the priesthood. He put his hand on my knee and says . . .” (page 40). This has been rewritten as follows in the History of the Church, vol. 5, page 391: “Before retiring, I gave Brother and Sister Johnson some instructions on the priesthood; and putting my hand on the knee of William Clayton, I said:”

The extracts from William Clayton’s diaries not only provide evidence that third-person sources were changed to appear that Joseph had authored them, but they also cast doubt upon one of Joseph Smith’s most famous prophecies—the prediction that Steven A. Douglas would “aspire to the presidency of the United States.” This prophecy appears in Joseph Smith’s History of the Church, vol. 5, page 394, under the title, “The Great Prophecy on the Head of Steven A. Douglas”:

Judge, you will aspire to the presidency of the United States; and if ever you turn your hand against me or the Latter-day Saints, you will feel the weight of the hand of Almighty upon you; . . .

The Mormon historian B. H. Roberts made the following comment concerning this prophecy: “Two great prophecies by Joseph Smith belong to this period. The first was in relation to the removal of the saints to the valleys of the Rocky Mountains; the other was a most remarkable prediction concerning Steven A. Douglas, . . .” (A Comprehensive History of The Church of Jesus Christ of Latter-day Saints, vol. 2, page 181)

In his book Prophecies of Joseph Smith and Their Fulfillment, Nephi Lowell Morris maintained that the prophecy concerning Steven A. Douglas provides “incontrovertible evidence to the divine mission and inspiration of Joseph Smith” (page 215). On pages 201-202 of the same book, Morris argued that “At the time of the event, Steven A. Douglas was in his thirtieth year and though a bright and promising young man, he was scarcely known outside of his own state.”

In the History of the Church a note appearing in brackets on page 393 of vol. 5 indicates that this prophecy was actually taken “from the journal of William Clayton, who was present.” In other words, it was supposed to have been copied from Clayton’s diary into the “Manuscript History” of the Church. Since Ehat’s extracts from Clayton’s diary cover the same day, one would expect to find the prophecy recorded there. An examination, however, reveals that while the diary does mention Douglas, the prophecy concerning him is not included. Joseph Smith is quoted as saying the following on May 18, 1843:

. . . “I prophecy in the name of the Lord God that in a few years this government will be utterly overthrown and wasted so that there will not be a potsherd left” for their wickedness in conniving at the Missouri mobocracy. The Judge appears very friendly & acknowledged the propriety of the prests. remarks. (William Clayton’s Diary, May 18, 1843, typed excerpts, page 42)

The account published in the History of the Church is about 160 words longer than the one found in Clayton’s diary. It differs in two very important aspects: One, additional words appear in Joseph Smith’s prophecy that the United States would be “utterly overthrown.” These words change the prophecy to make its fulfillment conditional upon the performance of the United States Government. Two, the entire prophecy concerning Douglas has been inserted. In the quotation from the History of the Church which is printed below we have marked the important additions with italics:

. . . I prophesy in the name of the Lord God of Israel, unless the United States redress the wrongs committed upon the Saints in the state of Missouri and punish the crimes committed by her officers that in a few years the government will be utterly overthrown and wasted, and there will not be so much as a potsherd left, for their wickedness in permitting the murder of men, women and children, and the wholesale plunder and extermination of thousands of her citizens to go unpunished, thereby perpetrating a foul and corroding blot upon the fair fame of this great republic, the very thought of which would have caused the high-minded and patriotic framers of the Constitution of the United States to hide their faces with shame. Judge, you will aspire to the presidency of the United States; and if ever you turn your hand against me or the Latter-day Saints, you will feel the weight of the hand of Almighty upon you; and you will live to see and know that I have testified the truth to you; for the conversation of this day will stick to you through life.

He (Judge Douglas) appeared very friendly, and acknowledged the truth and propriety of President Smith’s remarks. (History of the Church, vol. 5, page 394)

Compare the three images above, which display: 1) – Andrew Ehat’s extract from William Clayton’s diary for May 18, 1843 (notice that the enclosed portion contains only 78 words); 2) and 3) – the History of the Church, Vol. 5, pages 393 and 394 (printed by the LDS Church), which quote the entry for the same day “from the journal of William Clayton,” (notice, however, that they contain 456 words and include the famous prophecy concerning Stephen A. Douglas, which is not found in Ehat’s version).

Instead of confirming the famous prophecy concerning Douglas, William Clayton’s diary seems to provide evidence against it. All it contains is the false prophecy that the United States will be destroyed. Joseph Smith’s private dairy for May 18, 1843, is also silent concerning the prophecy. The manuscript for the History of the Church cannot be used as evidence for the prophecy because this portion was NOT written during Joseph Smith’s lifetime. In an article published in 1971, Dean C. Jessee, who was serving on the staff of the Historical Department of the Church, published a chart which shows that this portion of the History of the Church was not written until 1854 or 1855 (Brigham Young University Studies, Summer 1971, page 441). This, of course, would be 10 or 11 years after Joseph Smith’s death! If the prophecy concerning Douglas was made up in the 1850s, as the evidence seems to indicate, then it has no real value. By the middle of that decade it was well known that Douglas wanted to be President of the United States. T.B.H. Stenhouse informs us that in 1856 “Senator Douglas was a candidate for the Presidency” but that his party (the Democrats) chose James Buchanan to represent them. In 1860 Douglas finally received the nomination of the convention but was defeated by Abraham Lincoln in the election (The Rocky Mountain Saints, pages 347-48). Since Douglas died shortly after his defeat, Mormon historians seem to feel that God punished him for turning against the Church. These same apologists do not seem to realize that this type of reasoning could be used against Joseph Smith. In Mormonism—Shadow or Reality? pages 416-17, we show that Smith also aspired to be President of the United States. In 1844 he announced himself a candidate and the Elders of the Church were sent out to “electioneer for Joseph to be the next President” (History of the Church, vol. 6, p. 325). Before the election ever took place, however, Joseph Smith was murdered in the Carthage Jail. B. H. Roberts maintained that Douglas died “while yet in the prime of manhood-forty-eight years of age . . .” (Ibid., page 396). For those who are not already committed to the defense of Mormonism, this does not provide any evidence that God was judging Steven A. Douglas for opposing the Church. After all, Joseph Smith was ten years younger than Douglas when he was murdered. If Douglas died in the “prime of manhood,” what can be said about Joseph Smith? B. H. Roberts claimed that Joseph Smith’s prophecy concerning Douglas “is one of the most remarkable prophecies either in ancient or modern times” (History of the Church, vol. 3, p. 395). When all of the evidence is examined, however, it becomes clear that this purported prophecy does not furnish any evidence favorable to Mormonism.

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